Citation Nr: 0918728
Decision Date: 05/19/09 Archive Date: 05/26/09
DOCKET NO. 03-28 187 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether the veteran is competent for Department of Veterans
Affairs benefit programs.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The Veteran served on active duty from September 1974 to
December 1976.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Atlanta, Georgia (RO), which continued a finding of
incompetency.
FINDING OF FACT
The Veteran lacks the mental capacity to manage his own
affairs.
CONCLUSION OF LAW
The Veteran is incompetent for VA benefit purposes. 38
U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.353 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). The notice required must be provided to the
claimant before the initial unfavorable decision on a claim
for VA benefits, and it must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38
C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004).
However, in Sims v. Nicholson, 19 Vet. App. 453, 456 (2006),
the United States Court of Appeals for Veterans Claims
(Court) explicitly held that the notice and assistance
provisions do not apply to competency determinations.
Consequently, the Board is not required to address the RO's
efforts to comply with those provisions with respect to the
issue currently on appeal.
VA regulations provide that a mentally incompetent person is
one who because of injury or disease lacks the mental
capacity to contract or to manage his or her own affairs,
including disbursement of funds without limitation. 38
C.F.R. § 3.353(a) (2008).
Unless the medical evidence is clear, convincing and leaves
no doubt as to the person's incompetence, the rating agency
will make no determination of incompetence without a definite
expression regarding the question by the responsible medical
authorities. Determinations relative to incompetence should
be based upon all evidence of record and there should be a
consistent relationship between the percentage of disability,
facts relating to commitment or hospitalization, and the
holding of incompetence. 38 C.F.R. § 3.353(c) (2008).
Where reasonable doubt arises regarding a beneficiary's
mental capacity to contract or to manage his or her own
affairs, including the disbursement of funds without
limitation, such doubt will be resolved in favor of
competency. 38 C.F.R. §§ 3.102, 3.353(d) (2008).
In this case, the Veteran contends that he is capable of
handling his financial affairs without assistance and
requests that a finding of competency be restored. He
relates that with his therapy, he is now and will continue to
be competent to handle all of his issues, money and concerns.
He notes that after his mother died, he was on Supervised
[Direct Payment] and did very well.
A review of the record reflects that the Veteran is service-
connected for schizophrenia, chronic undifferentiated type
with anxiety, depression. The evaluation is 100 percent,
effective July 1997. He has been determined incompetent
since June 1992.
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence demonstrates that the
Veteran is not competent for VA benefit purposes. In so
finding, the Board acknowledges that a February 2003 VA
examination report supports a finding of competency. The
remainder of the medical opinions provide that the Veteran is
not competent or requires continued supervision of his
payments.
The report of a February 2003 VA examination relates that the
Veteran's claims file was reviewed. The examiner noted that
the Veteran had been considered incompetent for VA purposes
since 1992. On examination, the Veteran was alert, oriented,
relevant and coherent. There were no evident signs of
psychosis. The Veteran knew the date and his address, and
the amounts of his VA Social Security benefits. He had
reasonable and plausible estimates of expenses for rent,
utilities, and food. He had a reasonable idea of current
events. His memory, comprehension for simple materials and
ADL's was satisfactory. He appeared to be able to make
decisions in accord with his own values and interest. The
examiner expressed the opinion that the Veteran was competent
for VA purposes. He did not have viable employability. The
estimated GAF for the past year was 45 to 50.
The report of a November 2002 VA field examination provides
that the interviewer met with the Veteran and two of his
sisters at his sister's house. The interviewer and the
Veteran discussed the Veteran's income and expenses. The
Veteran's brother in law and two other sisters supervised his
spending. He was aware of his income and outgo. He was
capable of handing his own funds. He had the supervisions of
his brother and sisters. The interviewer concluded that the
Veteran should be paid under Supervised Direct Payment. A
one-year diary should be established due to the fact that the
Veteran was under Supervised Direct Payment.
The report of a November 2004 VA field examination notes that
the examination took place at Central State Hospital. The
report notes that the Veteran was acting in a prudent manner
in receiving his own money. It appeared that he could handle
his own funds under Supervised Direct Payment. The
interviewer concluded that the Veteran should be paid under
Supervised Direct Payment. A one-year diary should be
established due to the fact that the Veteran was under
Supervised Direct Payment.
The report of a March 2005 VA examination provides that an
abbreviated claims file was available for review. Treatment
records from the Augusta VA Medical Center were reviewed and
a staff member from the Veteran's group home joined the
Veteran briefly. All other information received from the
Veteran was not verified for accuracy. The Veteran was a
very poor historian and difficult to follow due to his
tangential thinking.
The report reviews the Veteran's medical, legal and social
history, and sets forth the results of mental examination.
The Axis I diagnosis was paranoid schizophrenia, chronic
polysubstance abuse/in remission since incarcerated. The
Axis V GAF score was 50.
The examiner expressed the opinion that the Veteran was not
competent to handle his finances. The Veteran remained
mentally ill, expressing feelings of paranoia and persons
wanting to harm him when he does well. He experienced visual
and auditory hallucinations. He had experienced a head
injury and was in the hospital for a period of time (he was
unsure of the duration). His long-term use of cocaine and
alcohol painted a poor picture for competence. He was not
able to handle his medications and could not provide a date
when he would have his next Risperdal injection.
The report of a May 2005 VA psychiatric evaluation provides
that the examiner reviewed the Veteran's claims file, and
sets forth the relevant medical, occupational and social
history. The Veteran had been living in a group home since
December 2004. Prior to that, he had been using crack
cocaine for about 6 years. His brother in law took care of
his checks. The Veteran wanted to control his own money now,
and felt he could since he was no longer using drugs.
The report sets forth the results of examination. The
examiner stated that based on the information obtained and
behavioral observations, it appeared that the Veteran would
have great difficulty with basic activities of living if not
in a structured, supervised setting. The Axis I diagnosis
was schizophrenia, and the current Axis V GAF score was 40.
The examiner stated that, based on the information available
(including reports of previous VA Compensation and Pension
examinations done to determine the Veteran's competency), the
Veteran was not competent for VA purposes. He had a history
of substance abuse, and a history of very poor judgment, poor
impulse control, poor memory and poor concentration. He
continued to experience significant delusions and paranoia
despite treatment with medications. Given these facts, the
examiner did not believe the Veteran could manage his
benefits in his own best interests.
Overall, the Board finds that the medical opinions against a
finding of competency outweigh the February 2003 opinion.
Together, these medical opinions take into account input from
people other than the Veteran. They consider more details
regarding the Veteran's mental and social functioning than
the February 2003 opinion. They refer to more findings in
the Veteran's medical and psychiatric records, and explain
how such findings result in a lack of competency. This fact
is particularly important, in the Board's judgment, as the
references makes these opinions more convincing.
The Board also finds that a private discharge summary dated
in August 2006 (subsequent to the medical opinions discussed
above) supports the finding that the Veteran lacks
competency. The report does not address how long the Veteran
was a patient but does reflect that he received residential
treatment services and treatment. The report relates that he
was admitted for severe decompensation, legal troubles,
substance abuse and poor independent living skills. He was
referred by his parole officer and "AMH", apparently a
hospital.
The Board has considered the written contentions of the
Veteran and his representative with regard to restoration of
a determination of competency. However, the Veteran's own
assertions regarding his competency do not constitute
competent medical evidence. 38 C.F.R. § 3.353(c); Sanders v.
Brown, 9 Vet. App. 525 (1996).
For the foregoing reasons, the Board finds that the
preponderance of the evidence is against the claim for a
finding of competency, and the claim must be denied. 38
U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.353(d)
(2007); Sanders, supra; Sims, supra.
ORDER
The Veteran is incompetent for VA purposes; the appeal is
denied.
____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs